LHC sets aside ECP’s disciplinary proceedings against officials

ECP has no jurisdiction to initiate proceedings against petitioners as they are no longer election officials, says LHC

LAHORE:

The Lahore High Court (LHC) on Wednesday set aside the disciplinary proceedings initiated by the Election Commission of Pakistan (ECP) against the then district police officer (DPO), deputy commissioner, assistant commissioner and others over alleged irregularities in the Daska by-election held on National Assembly NA-75, Sialkot-IV.

LHC's Justice Shujaat Ali Khan issuing a detailed judgment observed that "I have no hesitation to hold that upon declaration of the fate of the election in the constituency, the petitioners no more remained election officials, hence, the Commission has no jurisdiction to initiate proceedings against them. Resultantly, all these writ petitions are accepted".

It is worth mentioning that upon the death of MNA Syed Iftikharul Hassan Shah from NA-75, Sialkot-IV by-polls for the constituency were scheduled for February 19, 2021. After completion of the polling process, out of 360 polling stations, the results of 340 polling stations were received on form-45, at around 02:53 am, on February 20, 2021, and that of the remaining 20 polling stations was not received within the prescribed time.

Syeda Nosheen Iftikhar, one of the contesting candidates in the constituency, approached the ECP with the request to withhold the election result whereupon the commission halted the announcement of the election result. Finally, the commission scrapped the election in the constituency while declaring it null and void and ordered fresh elections on March 18, 2021.

Being aggrieved by the ECP order Ali Asjad Malhi, one of the contesting candidates, filed a civil appeal before the Supreme Court of Pakistan. On the other hand, the commission ordered for a fact-finding Inquiry by a committee constituted under the convenorship of Joint Provincial Election Commissioner Saeed Gul which gave its findings on September 29, 2021.

Pursuant to the report of the fact-finding committee, the commission on February 14, 2022, filed a complaint under sections 184, 186, 187 read with sections 188 and190 of the Elections Act, 2017 (the Act, 2017) as well as under sections 365, 120-B, 171-F, 164, 386 & 368 of PPC, before the district & session judge in Sialkot against certain individuals, including some of the petitioners.

Meanwhile, the apex court dismissed the appeal filed by Malhi through short order followed by detailed reasoning, issued in the month of August 2022 with a direction to the ECP to hold an inquiry into the matter and unearth the means used by perpetrators for disappearance of 20 presiding officers on the day of the by-election. The ECP on January 5, 2022, ordered for initiation of inquiry against the petitioners and issued show cause notices to them with a direction to submit their written reply.

Aggrieved by the initiation of disciplinary proceedings against them by the commission, the petitioners filed the petitions.

The counsels of the petitioners implored the court that upon annulment of election in the constituency by the electoral body, their clients being no more election officials, as defined under section 2(xviii) of the Act, 2017, no proceedings could be conducted by the commission against them.

They contended the court that the commission had no jurisdiction to initiate the impugned disciplinary proceedings against the petitioners, who are no more under its control; that according to section 55 of the Act, 2017, the commission has jurisdiction to proceed against an election official only, thus, the impugned proceedings are coram-non-judice; that according to section 56 of the Act, 2017, before declaring a person as an election official, it is the prime duty of the ECP to administer oath and if a person is deployed for election duty without adhering to the said statutory provision, he does not fall within the definition of an election official, thus, the commission cannot take disciplinary action against such persons.

The counsel representing the commission opposed the stance of the petitioners contending that since these petitions have been filed against the issuance of show cause notices regarding the initiation of disciplinary proceedings against the petitioners, the same is not maintainable; that the illegalities/irregularities, pointed out by the SC in its decision, containing detailed reasons, rendered in civil appeal, can only be probed into by the ECP through detailed inquiry, hence, no interference is called for in these petitions; that allegation of mala-fide against the commission by the petitioners is not justified for the reason that bona-fide on the part of the Commission has already been endorsed by the Supreme Court of Pakistan while delivering detailed reasons of its short order.